Citation NR: 9711834
Decision Date: 04/07/97 Archive Date: 04/14/97
DOCKET NO. 94-32 131 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: The American Legion
INTRODUCTION
The veteran served on active duty from August 1943 to May
1946 and from May 1951 to May 1952.
This matter originally came before the Board of Veterans’
Appeals (Board) on appeal from a rating decision of the New
Orleans, Louisiana, Regional Office (RO), dated February
1994, whereby service connection for the cause of the
veteran’s death was denied. The claimant appealed that
determination to the Board. In May 1996, the Board remanded
the case to the RO for an attempt to obtain medical records
from a private physician who had treated the veteran in the
month preceding the veteran’s death and to obtain the
terminal hospital records.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
entitlement to service connection for the cause of the
veteran’s death is well grounded.
FINDING OF FACT
No competent evidence has been submitted that links the
causes of the veteran’s death to a service-connected
disability or to any incident of the veteran’s service.
CONCLUSION OF LAW
The claim for entitlement to service connection for the cause
of the veteran’s death is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a threshold matter, the Board must determine whether a
claimant has met the burden of submitting evidence sufficient
to justify a belief that the claim is well grounded in order
for the Department of Veterans Affairs (VA) to carry the
claim to full adjudication. 38 U.S.C.A. § 5107(a). For
purposes of determining whether a claim is well grounded, the
VA benefits system requires more than just an allegation; a
claimant must submit supporting evidence. Furthermore, the
evidence must justify a belief by a fair and impartial
individual that the claim is plausible. Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992) (citing 38 U.S.C. § 5107); see
also Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). A person
claiming entitlement to VA benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well-grounded.
38 U.S.C.A. § 5107(a). See Tirpak v. Derwinski, 2 Vet.App.
609, 610-611 (1992). Because a claim is neither defined by
the statute nor by the legislative history, it must be given
a common sense construction. A well-grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in line of
duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). To establish
service connection for the cause of the veteran’s death, the
evidence must show that disability incurred in or aggravated
by service either caused or contributed substantially or
materially to cause death. For a service-connected disability
to be the cause of death, it must singly or with some other
condition be the immediate or underlying cause, or be
etiologically related. For a service-connected disability to
constitute a contributory cause, it is not sufficient to show
that it casually shared in producing death, but rather, it
must be shown that there was a causal connection. 38 U.S.C.A.
§ 1310 (West 1991); 38 C.F.R. § 3.312 (1996).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1996). This means that there must be
evidence of disease or injury during service, a current
disability, and a link between the two. Further, the
evidence must be competent. That is, an injury during
service may be verified by medical or lay witness statements;
however, the presence of a current disability requires a
medical diagnosis; and, where an opinion is used to link the
current disorder to a cause during service, a competent
opinion of a medical professional is required. See Caluza v.
Brown, 7 Vet.App. 498, 504 (1995).
In the instant case, the veteran had established entitlement
to service connection for residuals of injuries to both legs,
involving scars, muscle group damage, and incomplete nerve
paralysis. The service-connected disabilities had a combined
disability rating of 60 percent, effective from December
1952. The service medical records show no recorded
complaints, findings, diagnosis, or treatment for a
cardiovascular disability. No such disability was found on
examination of the veteran by VA in March 1953.
The certificate of death shows that the veteran died in
December 1993, at age 68, as the immediate result of
congestive heart failure, due to acute myocardial infarction,
as a consequence of coronary atherosclerosis.
The appellant did not respond to a June 1996 request by the
RO for completion of medical release forms in order that the
RO might attempt to obtain records from the private treating
physician and the terminal hospital records. All that she
has presented is her claim form and her lay expression of
belief that the veteran’s service-connected disabilities
contributed to his death. Where the determinative issue
involves either medical etiology or a medical diagnosis,
competent medical evidence is required to fulfill the well-
grounded requirement of 38 U.S.C.A. § 5107(a). See Lathan v.
Brown, 7 Vet.App. 359, 365 (1995) (citing Grottveit v. Brown,
5 Vet.App. 91, 93 (1993); see also Moray v. Brown, 5 Vet.App.
211, 214 (1993) (lay persons are not competent to offer
medical opinions and, therefore, those opinions cannot serve
as the basis for a well-grounded claim); and Espiritu v.
Derwinski, 2 Vet.App. 492, 494-495 (1992). Accordingly, the
Board finds that her claim is not well grounded.
When a claimant fails to submit a well-grounded claim under
38 U.S.C.A. § 5107(a), VA has a duty under 38 U.S.C.A.
§ 5103(a) (West 1991) to advise the claimant of the evidence
required to complete the application in the limited
circumstances where there is an incomplete application which
references other known and existing evidence. Robinette v.
Brown, 8 Vet.App. 69, at 78 and 80 (1995). In the case at
hand, the appellant must submit competent, e.g., medical,
evidence of a relationship between the service-connected
disabilities or other incidents of the veteran’s service and
the certified causes of death. The appellant’s statements,
standing alone, do not establish a well grounded claim.
The Board acknowledges that it has decided the present appeal
on a different basis than did the RO. When the Board
addresses in a decision a question that has not been
addressed by the RO, it must be considered whether the
claimant has been given adequate notice and opportunity to
respond and, if not, whether the claimant will be prejudiced
thereby. See Bernard v. Brown, 4 Vet.App. 384 (1993). The
Board concludes that the appellant has not been prejudiced by
the decision on the above issue. It is reiterated that there
is not an incomplete application which references other known
and existing evidence and, in any event, the appellant failed
to cooperate in VA’s attempt to obtain additional medical
records. Although the appellant was denied by the RO upon
consideration of the merits of the claim, she was notified in
the statement of the case that the essential reason was that
the evidence did not show that the veteran’s service-
connected disabilities contributed materially to the cause of
death. The Board has considered the same law, regulations,
and evidence, but merely concludes that the appellant did not
meet the initial threshold evidentiary requirements of a well
grounded claim. The result is the same.
ORDER
Service connection for the cause of the veteran’s death is
denied.
BARRY ANDERSON
Acting Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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